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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF NOVEMBER 20.1_ Gu '~. _
BEFORE
THE HON'BLE MILJUSTIOEi$DBHAsHB§jjAD'xf u
R F A 310.554/206.5 [M0153 '
BETWEEN
ELOKESHWARAPPA, _
S/O. LATE C.K. ESHWA'R.A'P«PA.7_
AGED ABOUT 45 YEARS. 'A '
OCOADVOCATE, V
NO.215,VINAYAKANAGAR, _ -
T{}MKUR--5722'103;,.-' ~
(BY SR1.
AND
1. THE PUNgIAB'NATIQN'AL BANK.
TUMKUR BF _ ',T.CH_.
;=3.H..ROAD.~
. . ' ..... .. "
' REP.,BY"I.'._E'S BRANCH MANAGER.
2: . (3.3. jD1;1Arj\a"ANJAYA.
1 3/0. B.f'jSHIVAMURTPIAPPA,
R/O... CHIKKAYAGA'I'I'I,
* A T HOSADURGA ROAD POST,
' HOSADURGA TLAUK.
V' (LHETIRADURGA DIST. RESPONDENTS".
_{_B._’§r SR1. H.C. SHIVARAMU. ADV. FOR R1)
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THIS RFA IS FILED UNDER SECTION 96 R/W O XL} R I
CPC AGAINST THE JUDGMENT AND DECREE DATED:
25.1.2005 PASSED IN OS.NO. I32/1998 ON THE FILED}?
ADDLCIVIL JUDGE {SR.DN.), TUMKUR, DECREEIANICH} idire;
SUIT FOR RECOVERY OF MONEY.
THIS RFA COMING ON FOR ORDERS, .ijfi&f,.§’Ii’E
COURT MADE THE FOLLOWING: . ” ”
Though the matter is the
eonsent Of the Counsel it is taken up
for final disposal, as to 2005 and is
pending for T . O
2′: rdevfefired to as per their rank
before
T This ‘is:s_e_e_Ond defendants appeal questioning
__ and decree dated 25–1–2005 in
on the file of Addl. Civil Judge, [Sr.Dn.),
— vTum1′{u if. . ‘V T
E The first respondent Bank filed a suit for
of a sum of Rs.1,06,850/– with interest at the
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rate of 14% p.a. The case of the plaintiff is that the first
plaintiff approached the plaintiff Bank for credit facility in
connection with business for installing Xerox vnilachine
with accessories and the second H
guarantor. The plaintiff Bank sanctioned_RsfSw3,:ti–7f5../ .V
20-ll~1996. The loan documents
first defendant. The second .defenda’nt”exec1.itlegi.
guarantee on 25–l~l99’7. defendant
committed default, as isstied to first
defendant as well as V.2=r1jdefend_as.tv_ four occasions.
However; dlltliejfig ret.iirned_'”‘uriserved. Thereafter, the
Bank filed the Both the defendants were
duly servedfwith.suitA’s1ir1in1ons. However. Defendant No.1
“did achose tofappear and he was placed exparte. The
present appellant appeared and filed
his wlrittenisgtatement denying the claim of the plaintiff in
3″»-‘««.__V’toto and: also denied that he is unaware of the loan
A :”tran_s:action. The Trial Court framed the following issues:
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9% ./.51
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“1. Whether the plaintiff proves that
a loan of Rs.93,575/– was borrowed by the
1st defendant on the guarantee of 2nd
defendant and executed term loan agreement,
and 2110′ defendant has executed agreenfient
of guarantee dated 25-1437 ? it
2. Whether the p1aint:ffc’%:s 3»:n+,i’tied
for the suit claim ? 4′ l ‘ ‘
3. To what deere’eV:Vor order A
5. To prove the ease ._p1aintiff,”‘PW. 1 was
examined and Exs.P.1 to E0 were n–tarke_d__in his evidence.
Thoughjthe was given chance, he
did not choseto lead’a»:r1y..l:evldence. The Trial Court relying
on the oral ‘and docnmentary evidence has decreed the
A’s’uitvl”Et against said judgment and decree, the 2nd
this appeal.
.. 6. “liearned counsel for the appellant submits that,
defendant had no opportunity before the Trial
T Court and also submits that the loan transaction is also
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denied. He also relied on the deed of guarantee and
submitted that the date of signature of the witness is
taken on 22.11.1996 as such. the evidence produced by
the plaintiff Bank is not sufficient to decree the..~s:l1’1t:l: ”
7. In the light off the
appellant, the point that arises
appeal is: l V H
“Whether ~.t decree “of
the Trial Court this
Court?” w
The lolatif between the plaintiff Bank
and Deferlldant. disputed as Defendant No.1
Aphasjnoti appearedAa_.1′.1.d’ contested the matter. In so far as
is concerned, he has filed the Written
stateinent stating that he is unaware of the loan
lat_ransactio;n and he does not know even Defendant No.1.
it H To prove the case. the plaintiff Bank examined
llwwho has produced EX.P.1 the loan application given
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r$\*’£”/.
cieilieddn
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of Defendant No.1 for Rs.89,000/– for the purpose of
installing xerox machine. Ex.P.2 is the interview form by
the plaintiff Bank with Defendant No.1. Ex.P.3 is the–term
loan agreement executed by Defendant No.1
admitting having borrowed Rs.93.575/–.
document, first defendant had ‘1
loan alongwith interest at 914% No]
Ex.P.3 clearly stipulates that hasbeen sanctioned
to Defendant No.1 undia-..PM’Rv Defendant No.2
has executed a deed of_giiaran_teie l.”*3x.P.4 and it is
dated of guarantee ciearly
indicatespthat had undertaken to repay
the loan of Vin the event of the first defendant
tie, repay ‘the””‘i’oan. This document has not been
;EvetTerr.dant’ No.2 by entering into the Witness
box.»._44:lt isno-tiffnthe case of Defendant No.2 that he was
‘unaWare__f*of the proceedings. He was served with suit
A and he had appeared before the Trial Court and
was examined. Thereafter, the matter was posted
rfi
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for defendants evidence and Defendant No.2 did not
appear on that day. It is in these circumstances. the Trial
Court posted the matter for argument and relyingjon the
evidence of PW.1 and the documentary evideri’4cAe’:’__’i’ound
that there is nothing to disbelieve these
decreed the suit. Defendant No.1
contest the matter and though «’Defendar:1tii\Zo.2′:’;
written statement, does not crosstdexamine. 1 and there
is no evidence led by _
9. In these circumstances, I”.’doV’iiiot’V”find that there
is any the Trial Court in decreeing the
suit of theiplaindtiffaf :1 do not find it necessary to
issue; ‘fresh notice ‘to the unserved respondents.
appeal fails and the same is dismissed.
Sdlfi
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